Did Denver Shooter of Right-Wing Protester Just Get Away With Murder?

Did Denver Shooter of Right-Wing Protester Just Get Away With Murder?

In what some might suspect was an opportunistically-timed news dump this past Friday, Denver District Attorney Beth McCann announced that she was dropping second-degree murder charges initially brought against Matthew Dolloff over the October 10, 2020 political rally related shooting death of Lee Keltner, as reported in the Denver Post last Friday.

Keltner was reportedly protesting from the right side of the political spectrum, whereas Dolloff reportedly has political ties to Antifa and other left-wing organizations.

I wrote extensively on this shooting shortly after occurred in these two block posts, which I’ve temporarily made open-access:

Denver Shooting Errors: “OC is Non-Deadly Force!” and “Han Shot First!” (October 12, 2020)

Denver: Provocation with Intent (October 13, 2020)

In those two blog posts are largely explained the relevant legal concepts and Colorado-specific law that would apply to a use-of-force analysis in this instance (or, really, any similar use-of-force event within Colorado). That includes an exploration of Colorado’s self-defense law, explained using our own five elements of self-defense framework (free infographic here), as well as how self-defense as a legal justification could have been lost by Dolloff, Keltner, or both.

One remarkable facet of this event is that the actual culminating moments in the confrontation were captured frame-by-frame by a local news photographer.  That sequence of photos would seem to provide more than sufficient probable cause for DA McCann to have tested Dolloff’s claim of self-defense at trial. (You can find the entire sequence of photos at this Denver Post link; here I use only a select few of those photos for purposes of commentary and criticism.

One notable early photograph (#2633, timestamp 3:36:52 pm) of the confrontation between Dolloff and Keltner shows Keltner delivering an open-hand slap to Dolloff’s face, as Dolloff’s own arms are extended at Keltner.  At this point, Keltner is holding a can of bear spray in his right hand, pointed towards the sidewalk.

That slap by Keltner is delivered with sufficient force to knock Dolloff’s head around beneath his ballcap.  Nevertheless, it would clearly seem to be a blow best characterized as non-deadly in nature—that is, one not likely to inflict death or serious bodily injury.  Absent some aggravating circumstances—such as Keltner following up with a sustained series of blows—Dolloff would at most be privileged to defend against further similar attack with non-deadly defensive force.

In the next second (3:36:53), the following series of photographs shows Keltner maintaining his distance from Dolloff, and indeed, moving his weight and body further from Dolloff.  The can of bear spray remains pointed towards the ground and is moved further from Dolloff rather than closer.   A sustained attack or an intended imminent use of the bear spray by Keltner cannot reasonably be perceived in these actions.

Still within that same second, however, Dolloff has clearly made the decision to deploy deadly force against the no-longer aggressive Keltner.  We can infer this intent from Dolloff initiating the presentation of his pistol from its AIWB (appendix in-the-waist-band) carrying position, concealed by Dolloff’s button-down shirt.

The initial steps of this presentation are obvious to a trained individual in photograph #2640 (still timestamp 3:36:53)—Dolloff’s left hand grips and begins to raise the concealing shirt as his right hand reaches to grip the pistol in his front waistband.  As this is occurring, Keltner is neither advancing, raising his bear spray, or otherwise engaging in aggressive conduct.

Certainly, if I were to observe this conduct from someone acting aggressively towards me, I would reasonably infer that they are in the process of presenting a deadly weapon at me.  That this is so in this confrontation between Keltner and Dolloff is affirmed in the very next photograph, #2641 (still timestamp 3:36:53), as Dolloff progresses through the presentation of his pistol from its AIWB position, and his raised shirt exposes spare magazines for that pistol (note the red).

In that same photo, we can begin to see Keltner begin to raise his can of bear spray for the first time in his right hand.  It would seem reasonable to infer that he has realized that Dolloff has begun presenting a deadly force threat (a pistol) in response to what arguably was Keltner’s early initiation of non-deadly force (the open-hand slap).

Nowhere in the United States, including in Colorado, is deadly defensive force (e.g., a pistol) permitted to be used against a threat that is at best reasonably perceived as mere non-deadly force (e.g., a slap), at least outside the context of defense of highly-defensible property, such as one’s home, or some particular application of a specialized statutory provision, a context not relevant in this case.

It would seem, then, that Dolloff going to his gun in response to Keltner’s earlier slap, in the absence of any further ongoing aggression by Keltner would constitute an excessive and disproportional use of defensive force under the circumstances, losing Dolloff the element of Proportionality required for a valid claim of self-defense, and therefore losing Dolloff the legal justification of self-defense entirely.

Only after Dolloff has obviously begun to present his pistol at Keltner does Keltner begin to trigger the bear spray towards Dolloff, as shown in the very next photograph, #2642, now finally at timestamp 3:36:54.  This would apparently be a lawful, if ineffective, effort to throw off Dolloff’s aim by distracting him with the cloud of irritant spray coming at him.  Note that at the moment this photograph is taken, Dolloff has already fired the fatal shot, as the slide on his pistol is in the process of cycling—indeed, look closely and you can see the just-ejected brass just above the pistol.

At this point, the fight is effectively over, as the mortally wounded Keltner drops instantly to the ground, and Dolloff is promptly arrested by rifle-armed police present for the rally.

While there are certainly self-defense arguments that could be made here on behalf of Dolloff—and I’ve outlined many of those in the blog posts linked above—there would seem little doubt that Denver DA McCann has more than enough evidence in these photographs alone to amount to the probable cause needed to take Dolloff to trial on that initial charge of second-degree murder, if not some lesser-included charge such as manslaughter.

Instead, DA McCann has chosen not to try Dolloff on any charge whatever, with respect to his shooting dead of Keltner.

Prosecutors in America are given enormous discretion in deciding what cases to take to trial, and what cases to pass on.  Ideally, such decisions are based on the actual legal merits of the case.  Too often, such decisions are based on the political inclinations of the prosecutor.

While no prosecutor is bound by the decisions of some other prosecutor in some other jurisdiction in the context of some other use-of-force event, it is noteworthy that cases such as that of George Zimmerman, Kyle Rittenhouse, and Curtis Reeves were all very aggressively prosecuted with far less legal merit than exists in the shooting death of Lee Keltner by Matthew Dolloff on October 10, 2020.

Each of those aggressively prosecuted cases appropriately resulted in complete acquittals on all charges—the correct legal outcome given that the cases lacked even the probable cause that is theoretically required to go to trial in the first place, much less evidence beyond a reasonable doubt that the use-of-force in question was anything other than lawful self-defense.

In the case of Dolloff’s shooting of Keltner, we see a use-of-force event in which there is substantial evidence contrary to any claim of self-defense justification by Dolloff—and yet this Denver DA has elected to announce last Friday that she is dropping any consideration of charging Dolloff with any offense whatever.

I obviously don’t have the ability to read the mind of DA Beth McCann.  I don’t know whether her decision to not prosecute Dolloff was based on politics rather than legal merit.

I do know this, however—elect politically-motivated prosecutors, and don’t be surprised when you get politically-motivated prosecutorial decision-making.

OK, folks, that wraps it up for me on the shooting of Lee Keltner by Matthew Dolloff, at least for the time being.

Until we next meet up, remember:

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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